Purchase Order Terms & Conditions
Gold Hydrogen Limited
1.1 Gold Hydrogen agrees to engage the Supplier to supply the Goods and/or the Services to Gold Hydrogen and the Supplier agrees to supply the Goods and/or Services to Gold Hydrogen subject to the terms and conditions in this Contract.
1.2 Nothing in this Contract shall prevent Gold Hydrogen from, during the Term, engaging personnel or another contractor to provide goods or perform services similar to or the same as the Goods and Services the subject of this Contract.
2. Delivery of Goods and Performance of Services
2.1 The Supplier must supply all Goods and provide all Services in accordance with the terms of this Contract.
2.2 If the Supplier has any reason to suspect or believe that the Goods and/or Services (or any part of the Goods and/or Services) may not, or will not, be supplied strictly in accordance with clause 2.1, the Supplier must immediately notify Gold Hydrogen. Notification in accordance with this clause will not limit any of Gold Hydrogen’s rights under this Contract or otherwise at law nor does it relieve the Supplier of any obligation under this Contract.
2.3 Gold Hydrogen may in writing instruct the Supplier to vary the quantity of the Goods or the scope of the Services. The Supplier agrees to comply with any such instruction provided by Gold Hydrogen, provided that the Supplier may refuse to comply where the variation is, in the reasonable view of the Supplier, beyond the reasonable capability of the Supplier. The parties will negotiate in good faith to determine a reasonable adjustment to the Purchase Price that reflects any variation to the Goods or Services effected by this clause.
2.4 The Supplier must not subcontract the supply of any of the Goods or provision of any of the Services without the prior written consent of Gold Hydrogen.
3. Purchase Price and Invoicing
3.1 Gold Hydrogen shall pay the Supplier the Purchase Price as compensation for all Goods and Services supplied which are adequately and competently provided or performed (as applicable) in accordance with this Contract.
3.2 The Supplier shall submit an invoice for the Goods actually supplied and the Services actually performed in a month by no later than the 30th day of the subsequent month. The invoice shall be in a form that is satisfactory to Gold Hydrogen.
3.3 Gold Hydrogen shall have 30 days from the receipt of the Supplier’s invoice to pay the amounts set out in such invoice. Gold Hydrogen may withhold payment of any disputed portion of any invoice submitted by the Supplier, pending determination of such dispute.
3.4 The compensation contemplated under clause 3.1 represents full and complete consideration for the supply of Goods and the provision of the Services (including for provision of all labour costs and costs of all materials and equipment used in providing the Services) and the Supplier shall not be entitled to any other compensation in connection with the Goods and Services.
4. Title and Risk
4.1 Where Goods are provided by the Supplier to Gold Hydrogen pursuant to this Contract:
(a) title to the Goods will pass from the Supplier to Gold Hydrogen on payment for the Goods; and
(b) risk in the Goods will pass from the Supplier to Gold Hydrogen on supply of the Goods.
4.2 If Gold Hydrogen requires the Supplier to retrieve the Goods under clause 7.4 then title to and risk in those Goods will pass back to the Supplier at the time of collection of those Goods by the Supplier.
5. Supplier obligations
5.1 The Supplier must:
(a) ensure that the Goods are supplied free from deficiencies in design or workmanship and fit for the purpose for which they are supplied;
(b) provide the Goods and the Services in accordance with:
(1) this Contract; and
(2) all Applicable Laws (including without limitation, all laws relating to health and safety); and
(3) Gold Hydrogen’s policies and procedures (as notified by Gold Hydrogen to the Supplier), including but not limited to Gold Hydrogen’s Responsible Sourcing and Modern Slavery Policy; and
(4) Gold Hydrogen’s lawful instructions and reasonable requirements conveyed orally or in writing to the Supplier;
(c) act professionally and with all due care, diligence and control in a timely and proper manner with the highest possible regard to safety of all persons;
(d) exercise a reasonable standard of skill, diligence, knowledge, judgement and care;
(e) use its best endeavours so as not to interfere with any activities of any other person at any of Gold Hydrogen’s premises or the Services Location;
(f) at any time while on an Gold Hydrogen site, comply with all health and safety directions of Gold Hydrogen and all Gold Hydrogen Personnel;
(g) where the Supplier provides the Services through its officers, employees, agents or contractors:
(1) ensure that such personnel are suitably qualified and competent;
(2) ensure that such personnel attend, if required by Gold Hydrogen, an induction program (including, but not limited to emergency procedures and Native Title and Cultural Heritage training) to be run by Gold Hydrogen, at Gold Hydrogen’s own cost, prior to providing any Services;
(3) ensure that such personnel are aware of and comply with all of Gold Hydrogen’s policies and procedures that Gold Hydrogen has or may put in place, including Gold Hydrogen’s Drug and Alcohol Policy and Health and Safety Policies; and
(4) obtain the prior consent of its employees to alcohol and drug testing in such form as Gold Hydrogen reasonably requires; and
(h) ensure that all equipment used by the Supplier in providing the Services is maintained in a reasonable condition and complies with and is used in accordance with all Applicable Laws (including without limitation all laws relating to health and safety).
6.1 Without limiting the Supplier’s liability under this Contract, the Supplier must effect and maintain with a major insurance company carrying on general insurance business in Australia, from the date of this Contract until all obligations under this Contract are completed, the following insurances:
(a) workers compensation insurance covering liability to employees of the Supplier under the laws of their place of employment and any other place where any such employees may be required to provide any of the Services or supply any of the Goods, and employer’s common law liability insurance, without limitation of amount;
(b) third party public and product liability insurance covering liability to any third party for death or bodily injury (including illness) and loss of and or damage to property arising out of anything done or omitted to be done by the Supplier for a liability of not less than $20 million in respect of any one event;
(c) motor vehicle compulsory third party bodily injury insurance for all vehicles which are the responsibility or property of the Supplier and used in connection with the performance of the Services or supply of the Goods together with third party property damages insurance covering all such vehicles for a liability of not less than $20 million in respect of any one event; and
(d) insurance to cover all equipment and machinery of the Supplier for its full replacement value as approved from time to time by Gold Hydrogen.
6.2 Within 5 Business Days of the date of this Contract, the Supplier must deposit with Gold Hydrogen copies of certificates of currency of such policies of insurance described in clause 6.1 and for any renewal of such policies of insurance.
6.3 The public and products insurance policies set out in clause 6.1(b) shall, to the extent permitted by law, note Gold Hydrogen’s interest as principal under this Contract.
6.4 Subject to clause 2.4, if the Supplier subcontracts any part of the Services, the Supplier shall take all reasonable steps to ensure that each of its subcontractors effects and maintains during the currency of this Contract insurances of the type referred to in clause 6.1 and otherwise complies with this clause 6.
6.5 Insurance effected by the Supplier shall not relieve the Supplier of any obligations under this Contract.
7. Representations and Warranties
7.1 The Supplier warrants as of the date of this Contract and at all times during the term of this Contract that:
(a) the Goods and Services are fit for the purposes for which they would ordinarily be requested and any other purposes notified by Gold Hydrogen to the Supplier and will achieve any results sought after and notified by Gold Hydrogen to the Supplier;
(b) where Gold Hydrogen has specified specifications for the Goods or the Services to the Supplier, the Goods and Services conform with those specifications;
(c) the Goods and Services will be provided with all due care, skill and diligence which would be expected of a successful and experienced company which provides goods or services similar to the Goods and Services;
(d) the supply of the Goods and the provision of the Services complies with all Applicable Laws;
(e) the Supplier is the legal and beneficial owner of the Goods and has the right to sell the Goods to Gold Hydrogen free from all encumbrances;
(f) the person that signs this Contract is duly authorised to enter into this Contract and this Contract is a valid, binding contract with the Supplier which is enforceable against the Supplier in accordance with its terms.
7.2 The warranties given by the Supplier under clause 7.1 are additional to any other representations or warranties implied by law on the part of the Supplier.
7.3 Without limiting any of Gold Hydrogen’s other rights, powers or remedies, if the Supplier breaches any of the warranties or the Goods or Services do not comply with this Contract, then at Gold Hydrogen’s discretion and upon demand by Gold Hydrogen, the Supplier must at the Supplier’s sole cost and expense:
(a) in the case of Goods, repair or modify those Goods to Gold Hydrogen’s reasonable satisfaction or replace those Goods (at Gold Hydrogen’s option);
(b) in the case of Services, re-perform part or all of those Services; or
(c) in either case, refund any amount paid by Gold Hydrogen to the Supplier in relation to the Goods or Services.
7.4 If Gold Hydrogen requires the Supplier to replace any Goods or refund any amount paid by Gold Hydrogen in relation to any Goods, then the Supplier must, and Gold Hydrogen must allow the Supplier to retrieve those Goods as soon as practical at the Supplier’s sole cost and expense.
8. Indemnity and Liability
8.1 The Supplier shall indemnify Gold Hydrogen and all Gold Hydrogen Personnel from and against all Claims and Liabilities however arising that Gold Hydrogen or any Gold Hydrogen Personnel suffer, sustain or incur as a result of or in connection with this Contract including:
(a) loss of or damage to any real or personal property caused or contributed to by any act or omission of the Supplier or any Supplier Personnel in connection with this Contract;
(b) personal injury, illness to or death of any person to the extent caused or contributed to by an act or omission of the Supplier or any Supplier Personnel; or
(c) any breach by the Supplier or any Supplier Personnel of any Applicable Law, code of practice or standard, permit, licence or authority administered or issued by any government or regulatory authority or order of any court.
8.2 The indemnity in clause 8.1 shall not apply to the extent that any loss, cost, damage, claim, demand or liability is caused by the gross negligence or wilful misconduct of Gold Hydrogen or any Gold Hydrogen Personnel.
8.3 The indemnity provided by the Supplier in this clause 8 shall survive the termination of this Contract.
9. Intellectual Property
9.1 The Supplier remains the owner or licensee (as the case may be) of all Intellectual Property owned or used by the Supplier prior to entering into this Contract. The Supplier grants or must procure the grant to Gold Hydrogen of a non-exclusive, royalty-free licence to use the Supplier’s Intellectual Property for the purpose of the Services and enabling Gold Hydrogen to enjoy all benefits of the Services.
9.2 Gold Hydrogen remains the owner or licensee (as the case may be) of all Intellectual Property owned or used by it prior to entering this Contract.
9.3 All Intellectual Property created, developed or produced by the Supplier or any Supplier Personnel in connection with the supply of Goods or the provision of the Services or otherwise under this Contract or connected in some manner to this Contract (New IP) shall vest with Gold Hydrogen immediately upon its creation, development or production and Gold Hydrogen shall be the sole and exclusive owner of such Intellectual Property.
9.4 The Supplier shall undertake all actions necessary to assign all of its right title and interest in and to any New IP to Gold Hydrogen.
9.5 The Supplier must, and must ensure all Supplier Personnel, execute all documents (including any further assignment, transfer or related documents) which may be reasonably required by Gold Hydrogen to give effect to this clause and to secure ownership, registration or other protection of the New IP for Gold Hydrogen.
10. Relationship of Parties
10.1 The Supplier shall perform this Contract as an independent contractor and neither the Supplier nor any Supplier Personnel shall be, or be deemed to be, in partnership or in a joint venture with Gold Hydrogen or any employee or agent of Gold Hydrogen.
10.2 Unless expressly stated in this Contract, neither party has the authority to act on the other party’s behalf or bind the other party to any contract or commitment. The Supplier must not hold itself out as an employee or agent of Gold Hydrogen.
11.1 Each party must keep strictly confidential all information relating to the business, operations, prospects and finances of the other party that it obtains in connection with the performance of this Contract and not disclose any such information to a third party except where:
(a) disclosure may be required by an Applicable Law or rules of a stock exchange;
(b) a party has given its written consent to the use or disclosure of the confidential information;
(c) disclosure is to legal or other professional advisers; or
(d) disclosure is to a bona fide proposed third party assignee.
11.2 The Supplier shall ensure all of the Supplier Personnel abide by the confidentiality obligations in this clause and the Supplier shall be liable to Gold Hydrogen for the breach of such obligations by any Supplier Personnel.
11.3 The confidentiality obligation contained in clause 11.1 shall survive the termination of this Contract and continue to bind the parties.
12.1 Gold Hydrogen may terminate this Contract:
(a) at its sole discretion and at any time upon 7 days notice to the Supplier;
(b) immediately upon a material breach by the Supplier of any terms or conditions of this Contract and the Supplier has failed to remedy or diligently commence to remedy such breach within 5 Business Days of receipt of a notice from Gold Hydrogen; or
(c) upon the Supplier entering liquidation, ceasing or threatening to cease to carry on its business, having an external administrator appointed, being unable to pay its debts when the fall due or anything which in the sole discretion of Gold Hydrogen is analogous to or having a similar effect to anything described in this clause.
12.2 Notwithstanding termination of this Contract pursuant to this clause 12.1 or otherwise, the obligations of the Supplier under this Contract that remain unfulfilled or are capable of or expressly stated to survive the termination of this Contract will continue.
13. Force Majeure
13.1 A party is not liable for failure to perform its obligations under this Contract to the extent and for so long as its performance is prevented or delayed because of a Force Majeure Event, but only if that party:
(a) immediately gives written notice to the other party of the occurrence and details of the Force Majeure Event including its likely duration; and
(b) does everything reasonably practicable to recommence performing its obligations under this Contract as soon as possible.
13.2 Either Party may terminate this Contract if a Force Majeure Event prevents the Supplier from performing its obligations under this Contract for 60 consecutive days or more.
14.1 Unless otherwise expressly stated all fees, prices or the sums payable or consideration to be provided in connection with this Contract are exclusive of any GST.
14.2 The Supplier must pay all stamp duty, registration fees, taxes or other duties payable in respect of the execution and performance of this Contract and the dealings pursuant to it.
15.1 Any notice or other communication to or by any party must be in writing and addressed to the address of the recipient as set out in the Purchase Order or to any other address as the recipient may have notified the sender.
15.2 In addition to any other method of service authorised by law, the notice may be: (i) personally served on a party; (ii) left at the party’s current address for service; (iii) sent to the party’s current address for service by prepaid ordinary mail or if the address is outside Australia by prepaid airmail; or (iv) sent by electronic mail.
15.3 If delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.
16. Governing law and jurisdiction
16.1 This Contract is governed by and construed in accordance with the laws of Queensland.
16.2 Each party irrevocably submits to the non exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this Contract.
17.1 Despite any prior arrangements written or oral or any provisions to a contrary effect in any of the Supplier’s order forms or other documents and except as expressly provided in this Contract, this Contract constitutes an exclusive statement of the agreement between Gold Hydrogen and the Supplier with respect to the provision of the Services and the supply of the Goods.
17.2 A single or partial exercise or waiver by a party of any right under or relating to this Contract will not prevent any other exercise of that right or the exercise of any other right.
17.3 The Supplier must not assign, transfer, sub-contract or novate any part of its rights or obligation under or relating to this Contract or grant, create or dispose of any right or interest in it, without the prior written consent of Gold Hydrogen. Gold Hydrogen may assign, transfer or novate any part of its rights or obligation under or relating to this Contract or grant, create or dispose of any right or interest in it, at any time without the prior written consent of the Supplier by giving written notice to the Supplier.
17.4 The rights and remedies under this Contract are cumulative and not exclusive of any rights or remedies provided by law.
17.5 If anything in this Contract is or is determined to be unenforceable, illegal, voidable or void in a jurisdiction then it is severed for that jurisdiction and the rest of this Contract remains in full force and effect in all other jurisdictions. This clause has no effect if the deletion of the provision or provisions would substantially alter the intentions of the parties or the commercial nature of this Contract.
17.6 Time is of the essence of this Contract.
17.7 A party’s waiver of a right under or relating to this Contract, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party. No other act, omission or delay by a party will constitute a waiver of a right.
17.8 No variation of this Contract is effective unless such variation is executed by the parties in writing.
17.9 This Contract may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this Contract may deliver it to, or exchange it with, another party by emailing a PDF (portable document format) copy of the executed counterpart to that other party.
18. Definitions and interpretation
18.1 In this Contract:
Applicable Law means any law, statute, rule, regulation, by-law, codes, order, policies, guidelines, notices, directives or other governmental provisions or declarations made or declared or recommended by any governmental or quasi-governmental entity, organisation or regulatory authority, or any terms and conditions of any permit, licence, approval or authorisation which may be applicable or relevant in the circumstances.
Gold Hydrogen means Gold Hydrogen Limited ABN 74 647 468 899, the notice details of which are set out in the Purchase Order.
Gold Hydrogen Personnel means all of Gold Hydrogen’s directors, officers, employees, contractors, agents, consultants and subcontractors of Gold Hydrogen (other than the Supplier and its subcontractors) which are employed or retained by Gold Hydrogen.
Business Day means a day on which banking institutions generally are open in Brisbane but excluding Saturdays, Sundays and public holidays.
Claim includes any action, claim, claim for compensation, claim for abatement of any obligation (monetary or otherwise), claim for any cost, damage, expense, injury, liability and/or loss, counter-claim, demand, proceeding, remedy, right, right of action, set-off and suit and includes any damage suffered, incurred and/or sustained in connection with any one or more of any of them.
Contract means the Purchase Order, these terms and conditions and any attachments to these terms and conditions.
Supplier Personnel means all of the Supplier’s director, officers, employees, contractors, agents, consultants and the Supplier’s subcontractors.
Force Majeure Event means any circumstances or event beyond the reasonable control of the party concerned resulting in or causing a failure or delay, hindrance to, or interference, whether wholly or in part, with the performance of that party’s obligations under this Contract, including: an act of God, riots, insurrections, rebellions, terrorist acts, civil disturbances, wars (declared or undeclared), government regulations for national defence, fire, lightning, severe weather conditions (including the Wet Season), strikes, boycotts, lockouts or other labour disturbances, delays associated with native title or cultural heritage or compliance with any law regulation or other requirement of any governmental body or court, provided it shall not include:
1. a strike, boycott or industrial disruption restricted solely to the Supplier Personnel;
2. breakdown of any of the equipment used by the Supplier or any Supplier Personnel; or
3. difficulty in supplying the Goods or providing the Services due to contractual commitments (existing or prospective) made by the Supplier with third parties which limit the ability of the Supplier to perform this Contract.
Goods means the goods set out in the Purchase Order.
Intellectual Property means all and any inventions, improvements, ideas, works or discoveries (whether written, pictorial, scientific, mathematical, electronic, geological, literary, dramatic, musical, artistic, audio, visual, typographic or otherwise and including any information or data created, processed or worked with on any computer in relation to the provision of the Services), howsoever stored or recorded and whether or not any copyright, design right, patent, trade or service mark or other intellectual property right (whether or not registrable) arises, subsists or may arise or subsist in respect of them in any jurisdiction.
Liabilities means any and all liabilities, losses, debts or obligations, whether actual or contingent, present or future, qualified or unqualified or incurred jointly or severally with any other person.
Purchase Order means the document issued by Gold Hydrogen Energy making a commitment to procure Goods and Services as described therein.
Purchase Price means the amount payable for the Goods and Services as set out in the Purchase Order.
Services means the services set out in the Purchase Order.
Services Location means the location as specified in the Purchase Order.
Supplier means the party specified on the Purchase Order.
Wet Season means the period from 1 November in any year to 30 March in the immediately succeeding year, inclusive of those dates.
18.2 Unless the contrary intention appears, a reference in this Contract to:
(a) any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
(b) money is to Australian dollars, unless otherwise stated;
(c) singlular includes the plural and plural includes the singular;
(d) a party includes the party’s executors, administrators, successors, substitutes and permitted assigns; annd
(e) a time is a reference to Brisbane time unless otherwise specified.
18.3 The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
18.4 A provision of this Contract must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of the Contract or the inclusion of the provision in the Contract.
18.5 If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.